Consent and the Competent Adult

Question 1

A person is considered competent if they are an adult and of sound mind. What are the 4 elements of competence?

Answer 1

A person is able to

1) Understand the information relevant to the decision
2) Retain the information
3) Use or weight that information as part of a decision making process
4) Communicate that decision

Question 2

Failure to obtain consent can result in either
- Civil trespass, or
- Criminal assault
Civil trespass or battery generally applies in medical situations rather than criminal assault. Define the tort of battery/trepass.

Answer 2

Battery is any intentional non-consensual touching, which is harmful or offensive to a person’s reasonable sense of dignity.
Consent is thus required to avoid liability for trespass.

Question 3

What is required for a claim of battery?

Answer 3

• Intentional touching
• No need to show that the patient suffered loss or injury, as the act itself is the legal wrong.
• Not a defence to battery that the doctor did no have an intention to harm or that they acted in the best interests of the patient.

Question 4

What are the types of consent that may be sought?

Answer 4

• Oral or implied

- In writing

Question 5

There are varying degrees of consent that may be sought. To escape an action in battery, only a low standard is required - “the patient understood the broad nature of the procedure”. Informed consent is required for advice on risks of a procedure. What are the 5 components of informed consent?

Answer 5

1) Given freely and voluntarily
2) Covered the procedure
3) Covered the person who is performing the procedure
4) The patient was competent and capable of providing consent
5) The patient was sufficiently informed to understand the subject of consent.

Failure to comply with 1-3 = battery
Failure to comply with 5 = negligence

Question 6

Briefly detail the outcome of the Rogers v Whitaker decision.

Answer 6

The decision found that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment.
Moreso, a doctor should advise of risks that a reasonable patient in the circumstances would attach significance OR
The doctor should be aware that this particular patient would attach significance to a risk.
This can be subject to therapeutic privilege.

Question 7

What is therapeutic privilege?

Answer 7

Therapeutic privilege is the limited discretion for the doctor to withhold or not to volunteer information that the doctor believes may seriously harm a patient’s health or welfare.
However -
[T]he paramount consideration [is] that a person is entitled to make his own decisions about his life and a doctor should not lightly make the judgment that the patient does not wish to be fully informed.

Question 8

When an individual is assessed as competent, they are able to refuse treatment. Can therapeutic privilege be used to withhold some risks of treatment if treating doctor believed the patient would not go ahead if they were to know all the risks?

Answer 8

Therapeutic privilege cannot be relied on simply because the patient may not undergo life-saving treatment if they knew of all the risks and facets of the procedures/treatments.
Common law is based on the principle that people have an absolute right to self-determination.

Question 9

Can a competent adult seek treatment that is not clinically indicated?

Answer 9

There is no duty for a doctor to provide a particular type of treatment. If a patient informs the doctor that they want a form of treatment and the doctor concludes that it is not clinically indicated, the doctor is not required to provide it - however, he should offer to arrange a second opinion.